RETAIL RESPONSIBLE ENTITY LIMITED. Retail Direct Property 18 Unit Trust

Transcription

1 RETAIL RESPONSIBLE ENTITY LIMITED Retail Direct Property 18 Unit Trust Supplemental deed 62 Charlotte St Brisbane Q 4000 GPO Box 1279 Brisbane Q 4001 T F Liability limited by a scheme approved under professional standards legislation.

2 Date This supplemental deed poll (Deed) is made on the date noted on page 7 of this document. Parties Retail Responsible Entity Limited ACN of Level 28, 35 Collins Street, Melbourne, Victoria (Manager) and Those persons from time to time who hold a Unit (Owners) Introduction A. The Manager is the responsible entity of Retail Direct Property 18 Unit Trust ARSN (Direct Property Investment). B. The Direct Property Investment is a registered managed investment scheme, governed by a constitution dated 26 July 2001 (Constitution), which has been amended a number of times since it was originally lodged with the Australian Securities & Investments Commission (ASIC). C. This Deed has been prepared to further amend the Constitution and will be lodged with ASIC pursuant to Section 601GC(2) of the Corporations Act. This Deed will take effect from the time of lodgement. D. The changes made by this Deed have been made by a special resolution of Owners pursuant to Section 601GC(1) of the Corporations Act. E. The terms of this Deed follow. rdp 18 ut supp deed Page (i)

3 TERMS 1. Definitions and interpretation Clause 2 of the Constitution applies to this Deed unless otherwise specified or the context requires another meaning or interpretation to be applied. 2. Amendment of the Constitution (d) This Deed amends the Constitution and is binding on (i) (ii) all Owners (as they are constituted from time to time), and the Manager. The Manager acknowledges that this Deed is made in accordance with the Constitution and the Corporations Act. The Manager declares that it is not, by this Deed (i) (ii) resettling or redeclaring the trust declared under the Constitution, or causing the transfer, vesting or accruing of any property comprising the Fund or the Real Estate in any person, The amendment of the Constitution by this Deed, and the other provisions of this Deed, are to be construed accordingly. 3. Operative provisions 3.1 Inclusion of Schedule 4 to the Constitution The Constitution is amended by inserting a new Schedule 4 to the Constitution after Schedule 3 as follows: "Schedule 4 Liquidity Mechanism 1 Definitions In this Schedule 4: Deed Poll means the deed poll dated on or around the date of the Meeting executed by FL in favour of the Unitholders. FDC Disposal Proceeds means $ FDC Call Option Acquisition Time means 6 p.m. on 30 November FDC Call Option Commencement Date means the date on which the Deed inserting this Schedule 4 becomes effective under Section 601GC(2) of the Corporations Act. FDC Call Option Notice means a notice, in a form approved by the Manager, pursuant to which FL (or its nominee) notifies the Manager (as agent and attorney for the Unitholders) that it will acquire all (but not some only) of the Units in the manner specified in clause 4. rdp 18 ut supp deed Page 1

4 FDC Call Option Period means a period of 5 Business Days commencing on the FDC Call Option Commencement Date. FDC Exit Record Date means the date of the Meeting. FDC Put Option Acquisition Time means 6 p.m. on 20 January FDC Put Option Notice means a notice in a form determined by the Manager: (1) which details the rights and obligations of the Unitholders under this Schedule 4; and (2) which contains any other information required by law, or that the Manager considers reasonably necessary for a Unitholder to make a decision with respect to the exercise of its rights under clause 3. FDC Put Option Period means the period of 20 Business Days commencing on the date the Manager issues the FDC Put Option Notices. FL means Federation Limited ACN Meeting means the meeting of Unitholders held on or about 13 November 2014 convened by the Manager pursuant to clause 29 ( Meetings of Unitholders ) of this Constitution to consider a resolution to amend this Constitution to insert this Schedule 4 into this Constitution, and includes any adjournment of that meeting. Nominee means any party or parties nominated by FL. A reference in this Schedule 4 to a clause, is a reference to a clause of this Schedule 4, unless the context otherwise requires. 2 Call Option If, during the FDC Call Option Period, FL (or its Nominee) gives the Manager a FDC Call Option Notice, then the Manager (as agent and attorney for the Unitholders) must transfer all (but not some only) of all of the Units in the Trust to FL (or its Nominee) in the manner specified in clause 4. The Manager must immediately notify Unitholders if it receives a FDC Call Option Notice. The Manager may notify Unitholders by posting a statement on its website. Once received by the Manager, a FDC Call Option Notice cannot be revoked. 3 Put Option If FL (or its Nominee) does not give the Manager a FDC Call Option Notice during the FDC Call Option Period: (1) each Unitholder has the right to require FL (or its Nominee) to acquire all (but not some only) of the Units held by the rdp 18 ut supp deed Page 2

5 Unitholder in the manner specified in clause 4 and the Deed Poll; and (2) the Manager must issue a FDC Put Option Notice to each Unitholder within 10 Business Days of the end of the FDC Call Option Period. A Unitholder may only exercise the right under clause 3(1) and the Deed Poll by returning their signed FDC Put Option Notice to the Manager during the FDC Put Option Period. The Manager must immediately provide a copy of each returned FDC Put Option Notice to FL. Once received by the Manager, a FDC Put Option Notice cannot be revoked. 4 Acquisition (d) If FL (or its Nominee) gives the Manager a FDC Call Option Notice during the FDC Call Option Period, then at the FDC Call Option Acquisition Time, FL (or its Nominee) must acquire all of the Units in the Trust. FL (or its Nominee) must pay the FDC Disposal Proceeds for each Unit that it acquires. If FL (or its Nominee) does not give the Manager a FDC Call Option Notice during the FDC Call Option Period, then at the FDC Put Option Acquisition Time, FL (or its Nominee) must acquire the Units which are the subject of FDC Put Option Notices returned in accordance with clause 3. FL (or its Nominee) must pay the FDC Disposal Proceeds for each Unit that it acquires. FL (or its Nominee) will acquire the Units specified in clause 4 or 4 (as applicable) free of encumbrances by transfer of the Units to FL (or its Nominee). The Manager, the Unitholders, and FL (or its Nominee) must do all things necessary to effect the acquisitions under this clause 4. 5 Consideration FL (or its Nominee) must pay for the acquisition of Units under clause 4 by depositing into an account nominated by the Manager an amount in Australian currency and in immediately available funds the total consideration payable to all Unitholders for the acquisition of Units under clause 4. FL (or its Nominee) must assume liability for, or cause the repayment of, and arrange for the lender to release each Unitholder whose Units are acquired under clause 4 from liability for the Loans to the respective Unitholders in respect of those Units and provide evidence to the Manager that it has done so. Subject to FL (or its Nominee) having complied with clauses 5 and 5, the Manager must procure that: (1) the amount received from FL (or its Nominee) under clause 5 is held on trust for the relevant Units; and rdp 18 ut supp deed Page 3

6 (2) within five Business Days after receiving the amount payable under clause 5, such an amount is drawn to pay each Unitholder the amount in Australian currency as that Unitholderis entitled to receive for the acquisition of their Units, either by: 6 Interim distributions (A) electronic funds transfer to an account nominated by the Unitholder for the purposes of payment of distributions; or (B) a cheque sent to the Unitholder s address recorded in the Register at the FDC Exit Record Date. The Manager is empowered to and will make a distribution of income to Unitholders: for the period from 1 October 2014 to 30 November 2014; and if Units are acquired pursuant to the FDC Put Option, for the period from 1 January 2015 to the date of acquisition under clause 4 in proportion to their holding of Units. 7 Covenants, representations and direction by the Unitholders Each Unitholder: (d) irrevocably acknowledges that this Schedule 4 binds the Manager and all Unitholders, including those who do not attend the Meeting, do not vote at the Meeting or vote against the resolution at the Meeting; irrevocably agrees to the transfer of all of their Units to FL (or its Nominee) in accordance with this Schedule 4; irrevocably agrees to the modification or variation (if any) of the rights attaching to their Units arising from this Schedule 4; and irrevocably consents to the Manager doing all things and executing all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to this Schedule 4 and the transactions contemplated by it and directs the Manager to do so. 8 Appointment of Manager as attorney and agent Each Unitholder, without the need for any further act by that Unitholders, irrevocably appoints the Manager as its attorney and as its agent for the purpose of: doing all things and executing all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the terms of this Schedule 4 (save for clauses 3 and 3) and the transactions contemplated by it including effecting a valid transfer or transfers of the Units to FL (or its Nominee) under clause 4, including executing and delivering any transfer forms; and enforcing the Deed Poll against FL, rdp 18 ut supp deed Page 4

7 and the Manager accepts such appointment. The Manager, as attorney and as agent of each Unitholder, may sub-delegate its functions, authorities or powers under this clause 8 to all or any of its directors and officers (jointly, severally or jointly and severally). 9 Manager s powers Without limiting the Manager s other powers under this Schedule 4, the Manager has power to do all things that it considers necessary or reasonably incidental to give effect to this Schedule 4 and the transactions contemplated by it. Subject to the Corporations Act, the Manager and any of its directors, officers, employees or associates, may do any act, matter or thing described in or contemplated by this Schedule 4 even if they have an interest (financial or otherwise) in the outcome of such exercise. 10 No transfer Except as provided in this Schedule 4, Unitholders may not transfer any Units at any time during the period commencing on the FDC Exit Record Date and: If FL (or its Nominee) gives the Manager a FDC Call Option Notice during the FDC Call Option Period, then ending on the Business Day after the FDC Call Option Acquisition Time; or If FL (or its Nominee) does not give the Manager a FDC Call Option Notice during the FDC Call Option Period, then ending on the Business Day after the FDC Put Option Acquisition Time. Any purported transfer in contravention of this clause 10 is of no force or effect and will not be recognised or recorded in the Register by the Manager. 11 Manager limitation of liability Subject to the Corporations Act, without derogating from any limitation of the Manager s liability in this Constitution, the Manager has no liability of any nature whatsoever to Unitholders beyond the Trust available to the Manager for the purpose of meeting the liability or from the payments made by FL or its nominee to the Manager for the benefit of the Unitholders arising, directly or indirectly, from the Manager doing or refraining from doing any act (including the execution of a document), matter or thing pursuant to or in connection with this Schedule Paramountcy The provisions of this Schedule 4 are paramount and apply to the extent of any inconsistency with any other provision of the Constitution." rdp 18 ut supp deed Page 5

8 4. Miscellaneous 4.1 Severance Any provision of or the application of any provision of, this Deed which is 4.2 Governing law prohibited in any jurisdiction, in that jurisdiction, in effect of only to the extent of the prohibition, or void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. This Deed is governed by and construed in accordance with the laws of Victoria. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Victoria. rdp 18 ut supp deed Page 6

9 Execution Signed as a deed poll this day of Signed, sealed and delivered as a deed poll for and on behalf of Retail Responsible Entity Limited ACN Name (please print) Signature of attorney Who is authorised by a power of attorney dated 20 June 2012 and who declares that they have at the time of execution of this document no notice of its revocation rdp 18 ut supp deed Page 7